State of Tennessee v. Calandra Clark

09/29/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs August 15, 2017

STATE OF TENNESSEE v. CALANDRA CLARK

Appeal from the Circuit Court for Madison County

No. 16-187 Roy B. Morgan, Jr., Judge

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No. W2017-00135-CCA-R3-CD

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A Madison County jury convicted the Defendant, Calandra Clark, of identity theft,

forgery, driving on a revoked license, and violation of the seat belt law. The Defendant

pled guilty to an additional count of driving on a revoked license as a prior offender, and

the trial court imposed an effective sentence of four years. On appeal, the Defendant

argues that the evidence is insufficient to sustain her convictions for identity theft and

forgery and that her sentence is improper. Upon review, we affirm the judgments of the

trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court for Madison

County Affirmed

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which THOMAS T.

WOODALL, P.J. and ROBERT L. HOLLOWAY, JR., J., joined.

George Morton Googe, District Public Defender, and Jeremy B. Epperson, Assistant

District Public Defender, Jackson, Tennessee, for the appellant, Calandra Clark.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney

General; and Jody S. Pickens, District Attorney General, for the appellee, State of

Tennessee.

OPINION

On May 2, 2016, the Defendant was indicted by a Madison County Grand Jury for

identity theft, possession of marijuana with intent to sell, possession of marijuana with

intent to deliver, possession of drug paraphernalia, forgery, driving on a revoked license,

driving on a revoked license as a prior offender, and violation of the seat belt law. As

relevant to the issues raised by the Defendant in this appeal, the facts adduced at the

September 22, 2016 trial were as follows:

Officer Robert Stevens of the Jackson Police Department testified that, on

September 27, 2015, at approximately 2:30 a.m., he stopped the Defendant’s car after he

noticed that the Defendant and a passenger were not wearing seat belts. Officer Stevens

approached the car and asked for the Defendant’s license, registration, and proof of

insurance. The Defendant told Officer Stevens that she did not have any of the requested

documents, that her name was “Franchesca Beard,” and that her birthdate was September

19, 1987. Officer Stevens entered the name and birthdate in his system, which showed a

valid license for “Franchesca Beard.”

Officer Stevens also testified that, during this time, he detected an odor of

marijuana and called for officer assistance. After a second officer arrived, Officer

Stevens re-approached the Defendant and asked her to exit the car. The Defendant

refused to exit the car, cursed, yelled, and acted “extremely belligerent” towards Officer

Stevens. Once the Defendant and the two passengers were eventually removed, Officer

Stevens searched the car and found a Crown Royal bag containing 23.65 grams of

marijuana, a digital scale, and an unopened package of Swisher Sweets cigarillos.

Officer Stevens was unable to identify the two passengers in the Defendant’s car, and one

of the passengers fled while he was searching the car. A dashcam video of the

Defendant’s arrest was played for the jury.

Officer Stevens testified that he wrote the name “Franchesca Beard” on the

evidence bags and that the Defendant signed her name as “Franchesca Beard” on her seat

belt violation citation. After the Defendant was arrested and booked, Officer Stevens

learned that the Defendant gave him a false name and birthdate. The name on the

evidence bags was updated, and Officer Stevens also re-issued a citation to the Defendant

in her real name and obtained her driver’s license history, which showed that her license

was revoked. The Defendant signed the re-issued citation with her real name.

Franchesca Beard testified that she was the Defendant’s cousin and that her

birthdate was September 19, 1987. Beard confirmed that the Defendant was driving

Beard’s car when she was arrested. Beard said that she was at a party with the Defendant

on the evening of September 27, 2015, and that she was “under the influence” and could

not recall whether she allowed the Defendant to take her car. However, Beard testified

that she did not consent to the Defendant’s use of her name and birthdate.

The jury found the Defendant guilty of identity theft, forgery, driving on a revoked

license, and violation of the seat belt law and acquitted the Defendant of the three

remaining drug charges. The Defendant pled guilty to the additional count of driving on

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a revoked license as a prior offender, which was merged into the original count of driving

on a revoked license. The trial court imposed an effective four-year sentence, and a

motion for new trial was subsequently denied. This timely appeal followed.

ANALYSIS

On appeal, the Defendant raises two issues for review: (1) whether the evidence

was sufficient to support her convictions of identity theft and forgery; and (2) whether her

sentence was improper.1 Upon our review, we affirm the convictions.

I. Sufficiency of the Evidence. The Defendant first argues that the evidence is

insufficient to sustain her convictions for identity theft and forgery. Specifically, she

contends that “her conduct did not meet the definition of identity theft under T.C.A.

[section] 39-14-150” because she did not obtain any credit, merchandise, service, or

medical information through her use of Beard’s identity. The Defendant further argues

that she cannot be guilty of forgery because her signature on the citation was not “an

intentional act.” The State responds that the evidence is more than sufficient to sustain

the convictions.

When a defendant challenges the sufficiency of the evidence supporting a

conviction, the standard of review applied by this court is “whether, after reviewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979). Similarly, Rule 13(e) of the Tennessee Rules of

Appellate Procedure states, “Findings of guilt in criminal actions whether by the trial

court or jury shall be set aside if the evidence is insufficient to support the finding by the

trier of fact of guilt beyond a reasonable doubt.” On appeal, the State is entitled to the

strongest legitimate view of the evidence and all reasonable inferences which may be

drawn from that evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011)

(citing State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010)). Because a guilty verdict

“removes the presumption of innocence and raises a presumption of guilt, the criminal

defendant bears the burden on appeal of showing that the evidence was legally

insufficient to sustain a guilty verdict.” State v. Hanson, 279 S.W.3d 265, 275 (Tenn.

2009).

Guilt may be found beyond a reasonable doubt where there is direct evidence,

circumstantial evidence, or a combination of the two. State v. Matthews, 805 S.W.2d

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The Defendant only challenges her sentences for identity theft and forgery. She does not

challenge her sentences for driving on a revoked license, driving on a revoked license as a prior offender,

or violation of the seat belt law.

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776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn.

1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The standard of review for

sufficiency of the evidence “‘is the same whether the conviction is based upon direct or

circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 370 (Tenn. 2011)

(quoting Hanson, 279 S.W.3d at 275). The jury as the trier of fact must evaluate the

credibility of the witnesses, determine the weight given to witnesses’ testimony, and

reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d 331, 335 (Tenn.

2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). Moreover,

the jury determines the weight to be given to circumstantial evidence and the inferences

to be drawn from this evidence, and the extent to which the circumstances are consistent

with guilt and inconsistent with innocence are questions primarily for the jury. Dorantes,

331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)). When

considering the sufficiency of the evidence, this court shall not reweigh the evidence or

substitute its inferences for those drawn by the trier of fact. Id.

“A person commits the offense of identity theft who knowingly obtains, possesses,

buys, or uses, the personal identifying information of another . . . [w]ith the intent to

commit any unlawful act including, but not limited to, obtaining or attempting to obtain

credit, goods, services or medical information in the name of such other person” without

the consent of the other person. T.C.A. § 39-14-150(b)(1). Personal identifying

information means “any name or number that may be used, alone or in conjunction with

any other information, to identify a specific individual,” including, in relevant part,

“[n]ame, social security number, date of birth, [or] official state or government issued

driver license or identification number[.]” Id. § 39-14-150(e). The offense of forgery is

committed when a person “forges a writing with intent to defraud or harm another.” Id. §

39-14-114(a). To “forge” is to “[a]lter, make, complete, execute or authenticate any

writing so that it purports to . . . [b]e the act of another who did not authorize that act.”

Id. § 39-14-114(b)(1)(A)(i).

In the instant case, the proof at trial clearly established that the Defendant used

Beard’s name and birthdate to falsely identify herself to Officer Stevens. Beard also

testified that she was the Defendant’s cousin and that she never consented to the

Defendant’s use of her name or birthdate. Although the Defendant argues that her failure

to obtain “credit, goods, services or medical information” in Beard’s name absolves her

of liability for identity theft, this is contrary to the plain language of the statute which

merely requires use of the information to commit “any unlawful act including, but not

limited to, obtaining or attempting to obtain credit, goods, services or medical

information in the name of such other person.” Id. § 39-14-150(b)(1) (emphasis added).

The Defendant’s use of another person’s identity to avoid prosecution for her criminal

charges clearly qualifies as an unlawful act. The Defendant’s argument is without merit.

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Likewise, the Defendant’s contention that she did not intentionally commit forgery

because Officer Stevens “instructed [her] to sign the citation” and that she was merely

“follow[ing] his order[s]” is equally without merit. As the State points out, Officer

Stevens asked the Defendant to sign her name, not to sign someone else’s name and

commit forgery. The Defendant is not entitled to relief.

II. Sentence. The Defendant also contends that her sentence is improper.

Specifically, she contends that “the proper sentence would have been an alternative

sentence” and that “the record does not support a sentence over two years.” However,

this is the entirety of the Defendant’s argument. The Defendant provides no further

analysis or support in her brief. We agree with the State that the Defendant’s argument is

inadequate and risks waiver of the issue. See Tenn. R. App. P. 27(a)(7) (The brief of the

appellant shall contain “[a]n argument . . . setting forth the contentions of the appellant

with respect to the issues presented, and the reasons therefor, including the reasons why

the contentions require appellate relief, with citations to the authorities and appropriate

references to the record . . . relied on.”); see also Tenn. Ct. Crim. App. R. 10(b) (“Issues

which are not supported by argument, citation to authorities, or appropriate references to

the record will be treated as waived in this court.”). Potential waiver notwithstanding, the

Defendant is still not entitled to relief.

“[T]he abuse of discretion standard, accompanied by a presumption of

reasonableness, applies to within-range sentences that reflect a decision based upon the

purposes and principles of sentencing, including questions related to probation or any

other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). A

trial court must consider the following when determining a defendant’s specific sentence

and the appropriate combination of sentencing alternatives: (1) the evidence, if any,

received at the trial and the sentencing hearing; (2) the presentence report; (3) the

principles of sentencing and arguments as to sentencing alternatives; (4) the nature and

characteristics of the criminal conduct involved; (5) evidence and information offered by

the parties on the mitigating and enhancement factors set out in sections 40-35-113 and

40-35-114; (6) any statistical information provided by the administrative office of the

courts as to sentencing practices for similar offenses in Tennessee; and (7) any statement

the defendant wishes to make in the defendant’s own behalf about sentencing. T.C.A. §§

40-35-210(b)(1)-(7). In addition, “[t]he potential or lack of potential for the rehabilitation

or treatment of the defendant should be considered in determining the sentence

alternative or length of a term to be imposed.” Id. § 40-35-103(5). The court must

impose a sentence “no greater than that deserved for the offense committed” and “the

least severe measure necessary to achieve the purposes for which the sentence is

imposed.” Id. §§ 40-35-103(2), (4).

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Any sentence that does not involve complete confinement is an alternative

sentence. See generally State v. Fields, 40 S.W.3d 435 (Tenn. 2001). Tennessee Code

Annotated section 40-35-102(6)(A) states that a defendant who does not require

confinement under subsection (5) and “who is an especially mitigated or standard

offender convicted of a Class C, D or E felony, should be considered as a favorable

candidate for alternative sentencing options in the absence of evidence to the contrary[.]”

However, a trial court “shall consider, but is not bound by, the advisory sentencing

guideline” in section 40-35-102(6)(A). See T.C.A. § 40-35-102(6)(D). Despite a

defendant’s eligibility, he or she is not automatically entitled to probation as a matter of

law. Id. § 40-35-404(b), Sentencing Comm’n Cmts. Moreover, the defendant bears the

burden of establishing his or her suitability for probation. Id. § 40-35-303(b).

A defendant is eligible for probation if the actual sentence imposed upon the

defendant is ten years or less and the offense for which the defendant is sentenced is not

specifically excluded by statute. Id. § 40-35-303(a). When considering probation, the

trial court should consider the nature and circumstances of the offense, the defendant’s

criminal record, the defendant’s background and social history, the defendant’s present

condition, including physical and mental condition, the deterrent effect on the defendant,

and the best interests of the defendant and the public. State v. Kendrick, 10 S.W.3d 650,

656 (Tenn. Crim. App. 1999) (citing State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978)).

“[A] trial court’s decision to grant or deny probation will not be invalidated unless the

trial court wholly departed from the relevant statutory considerations in reaching its

determination.” State v. Sihapanya, 516 S.W.3d 473, 476 (Tenn. 2014).

Finally, in determining whether to deny alternative sentencing and impose a

sentence of total confinement, the trial court must consider if:

(A) Confinement is necessary to protect society by restraining a defendant

who has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness of the

offense or confinement is particularly suited to provide an effective

deterrence to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or recently

been applied unsuccessfully to the defendant[.]

Id. §§ 40-35-103(1)(A)-(C); see State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

Here, the Defendant does not clearly state why she believes her sentence is

excessive. The Defendant was required to be sentenced as a Range I, standard offender

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subject to a sentencing range of two to four years for identity theft, a Class D felony.

T.C.A. § 40-35-112(a)(4); Id. § 39-14-150(i)(1). As to forgery, a Class E felony, the

Defendant was subject to a sentencing range of one to two years as a Range I, standard

offender. Id. § 40-35-112(a)(5); Id. § 39-14-114(c). Thus, the trial court’s four-year

sentence for identity theft and two-year sentence for forgery were within the statutory

ranges and presumed reasonable. In determining the appropriate length of the

Defendant’s sentences, the trial court applied one mitigating factor and two enhancement

factors, which the Defendant does not challenge on appeal.

The Defendant also argues that “the proper sentence would have been an

alternative sentence.” However, as the trial court noted, the Defendant had an extensive

criminal history of over twenty prior convictions, including multiple convictions for drug

and traffic offenses, assault, disorderly conduct, violation of the worthless check statute,

and a conviction for criminal impersonation based on a set of facts almost identical to the

instant case. The trial court also properly considered that the Defendant previously failed

to comply with probation rules in the past by failing drug screens, failing to pay

restitution, failing to meet the terms of supervision, and failing to maintain employment.

Because the record shows that the trial court carefully considered the evidence,

enhancement and mitigating factors, and the purposes and principles of sentencing prior

to imposing a sentence of four years, the Defendant has failed “to either establish an

abuse of discretion or otherwise overcome the presumption of reasonableness afforded

sentences which reflect a proper application of the purposes and principles of our

statutory scheme.” Caudle, 388 S.W.3d at 280. Additionally, the record shows that the

trial court properly relied on the Defendant’s criminal history and the Defendant’s failure

to comply with measures less restrictive than confinement. As such, the Defendant has

failed to prove that the trial court abused its discretion in denying an alternative sentence.

CONCLUSION

Based on the aforementioned authorities and reasoning, the judgments of the trial

court are affirmed.

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CAMILLE R. MCMULLEN, JUDGE

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